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390                                              MEDICAL  JURISPRUDENCE

Marriage being regarded as a contract by the Divorce Act, 1869, may
be declared null and void, if it can be proved clearly and convincingly that
one of the parties was, by reason of unsoundness of mind at the time of the
marriage, unable to understand the nature and responsibilities of the con-
tract of marriage. Unsoundness of mind developing subsequent to the
marriage is no ground for divorce.

Mere weakness and imbecility of mind, eccentricity and partial
dementia are not in themselves sufficient to avoid the marriage contract, but
the mental defect or derangement must be such as prevents one party from
comprehending the nature of the contract of marriage and from giving to it
his or her free and intelligent consent.

In an appeal by Mst. Titli alias Tereza18 from the decision of Mr. Young giving a
decree of nullity of marriage at the instance of a European called Alfred Robert Jones,
a resident of Bhim Tal in Naini Tal district, who had prayed that his marriage with
the appellant be declared nuH and void, one of the grounds being that he had been
deficient in mentality since his very childhood and had to be looked after by his relations
throughout his Hfe, it was held that the marriage could not be declared as a nullity, as
it was impossible to hold either that Mr. Jones was an idiot within the meaning of
section 19 of the Divorce Act or that he was incapable of giving consent and did not
voluntarily consent owing to force or fraud having been practised upon him after taking
advantage of any imbecility of his mind. According to his own statement he understood
what he was doing and realized what marriage meant.

Evidence.—Under section 118 of the Indian Evidence Act (Appendix II)
a lunatic is not competent to give evidence, if he is prevented by his lunacy
from understanding the questions put to him and giving rational answers to
them. However, he is competent to give evidence, if an insane person is in
the stage of a lucid interval, or if he is suffering from monomania, though it
rests with the judge and jury to decide whether or not they should give
credence to it.

Consent.—Section 90 of the Indian Penal Code provides that consent to
certain acts is not valid, if such consent is given by a person who, " from
unsoundness of mind or intoxication, is unable to understand the nature
and consequence of that to which he gives his consent". The question of
invalidity of consent may arise in cases of rape, causing death or grievous
hurt3 and abetment of suicide.

Consent to sexual intercourse given by a woman of imbecile or unsound
mind is of no avail, and the act amounts to rape.

Exception 5 of section 300 10 of the Indian Penal Code provides that
46 culpable homicide is not murder when the person whose death is caused,
being above the age of eighteen years, suffers death or takes the risk of
death with his own consent". Whereas section 87 19 of the Indian Penal
Code provides that " an act not intended and not known to be likely to
cause death or grievous hurt is not an, offence by reason of any harm which
it may cause, or be intended by the doer to cause, to any person, above
eighteen years of age, who has given consent, whether express or implied,
to suffer that harm; or by reason of any harm which it may be known by
the doer to be likely to cause to any such person who has consented to take
the risk of that harm ".

Abetment of suicide under section 30619 of the Indian Penal Code is
punishable "with imprisonment of either description for a term which may
extend to ten years and with fine ", while abetment of suicide of " a person
under eighteen years of age, an insane person, a delirious person, an idiot,
or a person in a state of intoxication " is punishable under section 30519 of
the Indian Penal Code " with death or transportation for life, or 'imprison-
ment for a term not exceeding ten years, and with fine ".

18.    Leader, Nov. 1, 1933.

19.    Vide Appendix IV.